State v. Gonzalez

• Decision Date: 03 December 1985
• Citation: 500 A.2d 1330,197 Conn. 677
• Parties: STATE of Connecticut v. Gerald GONZALEZ.
• Court: Connecticut Supreme Court

Page 1330

500 A.2d 1330

197 Conn. 677

STATE of Connecticut v. Gerald GONZALEZ.

Supreme Court of Connecticut.

Argued October 11, 1985.

Decided Dec. 3, 1985.

Erskine D. McIntosh, Asst. public defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty., and Edward J. Caldwell, Asst. State's Atty., for appellee (state).

Before ARTHER H. HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

The defendant, Gerald Gonzalez, was charged by information with the crime of robbery in the second degree in violation of General Statutes § 53a-135(a)(1). ¹ The defendant pleaded not guilty and was tried by a jury. He was found guilty as charged and the trial court committed him to the Connecticut correctional institution, Cheshire, for a period of three years. Execution of the sentence was suspended after one year and he was placed on probation for a period of three years. The defendant's sole claim on this appeal is that the state's attorney improperly commented on his decision not to call certain witnesses to support his alibi.

The robbery for which the defendant was convicted occurred at about 8 o'clock on the evening of February 5, 1979, at a grocery store owned by George Rodrigues, located at 73 Fairview Avenue in Bridgeport. For the purposes of this appeal the facts of the robbery may be quickly summarized. Three men, one of whom had a handgun, held up Rodrigues while he was in the process of closing his store for the night. They took cash from the register and two six packs of beer and fled in an automobile. Rodrigues pursued the culprits in his own car, which had been parked in front of his store. Later, the three robbers and Rodrigues abandoned their vehicles and the chase continued on foot. While fleeing, one of the robbers fell and dropped a bag containing the money from the holdup. He was, however, able to resume running and to avoid capture by Rodrigues.

Later that same evening, acting on information he had received, Detective John Flynn of the Bridgeport police department took Rodrigues to the emergency room of the Park City Hospital to see if he could make an identification. The defendant was at the hospital seeking treatment for an injured ankle. Rodrigues saw the defendant in the crowded emergency room and identified him as one of the three men who had committed the robbery. He also made a positive identification of the defendant at trial.

Detective Flynn arrested the defendant at the Park City Hospital and transported him to the Bridgeport police headquarters. En route the defendant told Flynn that at 8 o'clock he had been playing cards at the apartment of Marilyn Rodriguez, located at 383 Lexington Avenue in Bridgeport and that there were several other people in the apartment.

Prior to the commencement of trial, the defendant filed a notice of alibi defense, pursuant to Practice Book § 763, which named William Trujillo, Marilyn Rodriguez, and Willie Torres as witnesses whom the defendant would call to establish an alibi. Of these three individuals, only Trujillo testified at the trial. Trujillo and the defendant both testified that at the time of the robbery the defendant was playing cards at the Rodriguez apartment. In their testimony they named a number of people who also were there. None of those other persons, however, testified at trial.

The state's attorney, during his initial closing argument to the jury, made three relatively brief references to the missing witnesses. He argued in one instance that "I think he owes you an obligation to either bring in each and every ...." He was interrupted by an objection before he was able to complete the sentence with the word "witness," but his point was apparent to the jury. The defendant asked that the state's attorney's remarks be stricken and also moved for a dismissal and a mistrial, but the trial court denied the requests. Later, in his summation, the state's attorney on two occasions argued that the jury had a right to inquire as to what effort the defendant had made to contact certain missing witnesses to corroborate his alibi. An objection was made only on one of those occasions.

The effect of those remarks was to suggest to the jury that it might draw the inference that any testimony by the missing witnesses would have been unfavorable to the defendant. See State v. Williams, 195 Conn. 1, 14, 485 A.2d 570 (1985). The defendant claims, on this appeal, that the remarks of the state's attorney were an improper comment on the defendant's decision not to call certain witnesses to corroborate his alibi and allowed the jury to draw an unfavorable inference from his failure to call those witnesses. He further claims that the error was prejudicial and harmful and deprived him of a fair trial. There is no claim that there was deliberate prosecutorial misconduct.

In State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980), we stated that, when "counsel for either the state or the defendant intends to argue to the jury that an unfavorable inference be drawn from the absence of a witness at trial, an advance ruling from the trial court should be sought and obtained." See also State v. Williams, supra, 195 Conn. at 14, 485 A.2d 570; State v. Ubaldi, 190 Conn. 559, 567 n 6, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983). The state's attorney neither sought nor obtained an advance ruling from the trial court prior to making the remarks concerning the missing witnesses. The purpose of such an advance ruling is to allow the trial court to evaluate whether a party is entitled to the unfavorable inference which it seeks to have the jury draw under the test established in Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). At the time the ruling is requested, "the trial court should determine whether the defendant's fifth amendment right not to testify would be violated by the proposed argument and whether there is sufficient evidence for the jury to find that the absent witness is (1) available to the party against whom the inference is sought to operate and (2) one whom that party would naturally be expected to produce." (Footnote omitted.) State v. Daniels, supra, 180 Conn. at 113-14, 429 A.2d 813. The state's attorney, therefore, before he argued to the jury that the defendant had an obligation to call any particular witnesses or pointed out to the jury that the defendant had failed to produce certain witnesses to corroborate his alibi, should have sought an advance ruling from the trial court on the propriety of such an argument. The trial court should have taken corrective action by striking the state's attorney's comments at the time they were made and it was error to fail to do so.

The error was, however, harmless unless it was so prejudicial to the rights of the defendant that he was deprived of his right to a fair trial. State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981); State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980). The question is "whether the claimed erroneous action of the [trial] court would have been likely to affect the result." State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). "Due process seeks to assure a defendant a fair trial, not a perfect one." State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). Since the defendant does not allege the violation of a constitutional right, he has the burden of proving that the court's error was harmful. State v. Ruth, supra, 181 Conn. at 197, 435 A.2d 3.

Under the circumstances of this case, we conclude that any error was harmless. "In so doing we have viewed the state's attorney's comments in the context of the entire trial and the instructions that guided the jury's deliberations." State v. Daniels, supra, 180 Conn. at 112, 429 A.2d 813.

Our conclusion is based upon several factors. First, the fact that there were a number of people at the apartment was testified to by the defendant and William Trujillo. They were both cross-examined at some length concerning their relationship to those persons and the whereabouts of those persons at the time of trial. In addition, the defendant was questioned about what effort he had made to secure their presence in court to testify. Therefore, by the time the state's attorney made his comments in final argument, the jury had already heard testimony in the same vein and the jury was already well aware that the defendant had made little or no effort to secure additional alibi witnesses. The state's attorney's remarks simply belabored the obvious. It is hard to imagine that the remarks, although improper, could have affected the result. Further, defense counsel indicated to the jury in his closing argument that the testimony of the missing witnesses would have been repetitious.

Moreover, the trial court did not instruct the jurors that they could draw an unfavorable inference from the absence of witnesses at the trial. Rather it effectively assuaged the possible drawing of such an inference by its jury instructions. The trial court made it clear that the jurors were not to determine any facts solely on the basis of the number of witnesses testifying thereto. It charged the jury that "[n]o fact should be determined merely by the number of witnesses for or against it. It's the quality and not the quantity of the testimony that controls." By charging the jury to disregard the number of witnesses,...